Angel L. Pagan v. Hampden County District Attorney's Office (SPR 20222266)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 20, 2022 SPR22/2266 Joseph A. Pieropan, Esq. Records Access Officer Hampden County District Attorney’s Office 50 State Street Springfield, MA 01102 Dear Attorney Pieropan: I have received the petition of Angel Pagan appealing the response of the Hampden County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 20, 2021, Mr. Pagan requested twelve items of records relating to a homicide in Springfield, Massachusetts on October 20, 1994. Previous Appeals This request was the subject of previous appeals. See SPR22/0346 Determination of the Supervisor of Records (February 24, 2022); SPR22/1157 Determination of the Supervisor of Records (June 1, 2022); SPR22/1481 Determination of the Supervisor of Records (July 12, 2022); SPR22/1689 Determination of the Supervisor of Records (July 28, 2022); and SPR22/2046 Determination of the Supervisor of Records (September 20, 2022). In my September 20th determination, I ordered the office to identify the records it intends to withhold, and clarify which exemptions it claims in order to withhold such records. Subsequently the Office responded on September 26, 2022. Unsatisfied with the Office’s response, Mr. Pagan further appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Joseph A. Pieropan, Esq. SPR22/2266 Page 2 October 20, 2022 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Office’s September 26th Response In its September 26, 2022 response, the Office notes that in March 2015, in response to an identical request, it provided Mr. Pagan with 40 records, and in August 2022, provided an additional 6 records. In its September 26th response, the Office provides a numbered list of nine records that it is withholding, citing Exemptions (a), (c), and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Criminal Offender Record Information (CORI) The current definition of CORI is as follows:

Joseph A. Pieropan, Esq. SPR22/2266 Page 3 October 20, 2022 “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Autopsy Reports The Office also cites G. L. c. 38, § 2, which provides in pertinent part: The chief medical examiner, with approval of the secretary of the executive office of public safety, shall promulgate rules for the disclosure of autopsy reports, which shall not be deemed to be public records, to those who are legally entitled to receive them. G. L. c. 38, § 2. The Office states that it is withholding the following record under Exemption (a) and G. L. c. 38, § 2, listed as Item 6 in the Office’s September 26th response: 6. Autopsy reports and related records. ... Specifically, G.L. c. 38, § 2 says that “autopsy reports ... shall not be deemed to be public records.” Accordingly, I find that the Office may properly withhold autopsy reports.

Joseph A. Pieropan, Esq. SPR22/2266 Page 4 October 20, 2022 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest

Joseph A. Pieropan, Esq. SPR22/2266 Page 5 October 20, 2022 G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its response, the Office indicates it is withholding the following three numbered items under Exemption (f): 5. Transcribed Statement taken by Springfield Police Officer Paul Browne, Jr. on April 11, 1997. . . . 7. Notes of Interview by Sgt. John Gibbons and Trooper Daniel Soto on September 18, 1997. . . . 9. Grand jury minutes. The Office also indicates that the grand jury minutes include “witness’s testimony.” Based on previous correspondence included in Mr. Pagan’s appeal, dated September 16, 2015, and May 9, 2022, it appears that Mr. Pagan is familiar with the identities of the victim and witnesses in this case. Where it appears that Mr. Pagan knows the identity of the witnesses, I find the Office may permissibly withhold the statements and interviews of the voluntary witnesses and grand jury minutes from disclosure under Exemption (f), as any redactions to preserve the witnesses’ identities may be futile in this instance. The inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the

Joseph A. Pieropan, Esq. SPR22/2266 Page 6 October 20, 2022 public, but also from the vantage of those who are familiar with the individual. See Globe Newspaper Co., 388 Mass. at 438. Burden of Specificity As discussed above, the Office may properly withhold the records listed as items 5, 6, 7, and 9 in its September 26th response. However, based on its response, the office has not met its burden to withhold the following numbered records, listed below with the exemptions claimed by the Office: 1. Polygraph Examination Worksheet, dated May 21, 1997, is exempt from disclosure under Exemption (a) (CORI), Exemption (c), and Exemption (f). . . . 2. FBI Polygraph Report, dated May 21, 1997, is exempt from disclosure under Exemption (a) (CORI), Exemption (c), and Exemption (f). . . . 3. Board of Probation Record is exempt from disclosure under Exemption (a) (CORI). . . . 4. Springfield Police Department Photo Array is exempt from disclosure under Exemption (a) (CORI), Exemption (c), and Exemption (f). . . . 8. Department of the State Police Report of Trooper Daniel Soto dated January 8, 1997, is exempt from disclosure under Exemption (a) (CORI), Exemption (c), and Exemption (f). Based on the Office’s September 26th response, it is unclear how these five records may be withheld under the exemptions cited. Specifically, it is unclear how these records would constitute CORI. It is further unclear how these records, in their entirety, would constitute “intimate details of a highly personal nature,” as required under Exemption (c). Additionally, where there is no longer an active investigation, it is unclear how these records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required under Exemption (f). The Office must clarify these matters. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Additionally, the Office must clarify whether segregable portions of these records can be provided. See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Joseph A. Pieropan, Esq. SPR22/2266 Page 7 October 20, 2022 Conclusion Accordingly, the Office is ordered to provide Mr. Pagan with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Angel Pagan (by mail)